Citation Nr: 1147481
Decision Date: 12/30/11 Archive Date: 01/09/12
DOCKET NO. 02-08 656A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania
THE ISSUES
1. Entitlement to a disability rating in excess of 40 percent for service-connected lumbosacral strain for the period dated since August 3, 1995.
2. Entitlement to an effective date earlier than May 15, 2011, for the award of a total rating based on individual unemployability (TDIU).
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
M. Purdum, Associate Counsel
INTRODUCTION
The Veteran served on active duty from April 1971 to November 1973.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2001 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania.
In November 2001, the Veteran testified before a Decision Review Officer (DRO) at the RO in Philadelphia, Pennsylvania. A transcript of the hearing has been associated with the claims file.
When the case was before the Board in February 2009, the Board decided the Veteran's appeal as to the issues of entitlement to an initial rating in excess of 40 percent for service-connected lumbosacral strain, and entitlement to a TDIU. The Veteran appealed such decision to the United States Court of Appeals for Veterans Claims (Court). In January 2010, the Court issued an order that granted a Joint Motion for Remand, vacated the Board's February 2009 decision denying both issues, and remanded the matters to the Board for action in compliance with the motion.
Subsequent to the January 2010 Court Order, the Board, in April 2010, remanded this case for additional development. The Appeals Management Center (AMC), in August 2011, granted the Veteran's claim of entitlement to a TDIU. Thus, the AMC's action represents a full grant of the benefit sought as to such claim. With respect to the earlier effective date issue listed on the title page herein, this issue stems from the AMC's August 2011 assignment of an effective date for the award of a TDIU. The Veteran then filed a September 2011 Notice of Disagreement (NOD) with this decision, expressing dissatisfaction with the effective date assigned. Based on the Court's decision in Manlincon v. West, 12 Vet. App. 238, 240-41 (1999), the Board is remanding the earlier effective date issue to the AMC/RO for the issuance of a Statement of the Case (SOC).
The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required.
REMAND
Although the Board regrets the additional delay, further development is needed prior to disposition of the claims.
At the time of the Board's April 2010 remand, the Board referred the issues of an increased rating for lumbosacral strain and TDIU to the Under Secretary for Benefits or Director of Compensation and Pension Service for consideration of an extra-schedular evaluation under both 38 C.F.R. § 4.16(b) and 38 C.F.R. § 3.321(b)(1). While the issue of entitlement to a TDIU has been resolved in the Veteran's favor, and the issue of an earlier effective date to the same has been remanded herein, there is no evidence that the AMC referred the Veteran's claim of entitlement to an increased rating for lumbosacral strain to the Under Secretary for Benefits or Director of Compensation and Pension Service for consideration of an extra-schedular evaluation under 38 C.F.R. § 3.321(b)(1).
As the AMC did not comply with the Board's April 2010 remand directive, the Board must now remand the issue again. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998).
In April 2010, the Board concluded that referral of the increased rating claim to the Director of Compensation and Pension Service for an extra-schedular evaluation pursuant to 38 C.F.R. § 3.321(b)(1) was warranted, as there was some evidence of "marked interference" with employment. The Board emphasized that entitlement to an extra-schedular rating under 38 C.F.R. § 3.321(b)(1) and a TDIU extra-schedular rating under 38 C.F.R. § 4.16(b), although similar, are based on different factors. See Kellar v. Brown, 6 Vet. App. 157 (1994). An extra-schedular rating under 38 C.F.R. § 3.321(b)(1) is based on the fact that the schedular ratings are inadequate to compensate for the average impairment of earning capacity due to the Veteran's disabilities. Exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, are required. In contrast, 38 C.F.R. § 4.16(b) merely requires a determination that a particular Veteran is rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities. See VAOPGCPREC 6-96.
The Board realized it could not assign an extra-schedular evaluation in the first instance. See Floyd v. Brown, 9 Vet. App. 88 (1996); Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Instead, the Board noted that it must refer the Veteran's claim to the Under Secretary for Benefits or Director of Compensation and Pension Service for this special consideration when the issue is either raised by the claimant or is reasonably raised by the evidence of record. See Thun v. Peake, 22 Vet. App. 111, 115 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). If, and only if, the Director determined that an extra-schedular evaluation was not warranted does the Board have jurisdiction to decide the claim.
The Board noted that the Court held that although the Board was precluded from initially assigning an extraschedular rating, there was no restriction on the Board's ability to review the adjudication of an extraschedular rating once the Director of C & P determines that an extraschedular rating was not warranted. Anderson v. Shinseki, 22 Vet. App. 423, 427-8 (2009); see also Floyd, 9 Vet. App. at 96-97 (stating that once Board properly refers an extraschedular rating issue to Director of C & P for review, appellant may "continue[ ] to appeal the extraschedular rating aspect of this claim"); see also 38 U.S.C.A. §§ 511(a), 7104(a) ("All questions in a matter ... subject to decision by the Secretary shall be subject to one review on appeal to the ... Board."). In the present case, the Director of Compensation and Pension has not yet made this initial determination.
As discussed above, with respect to the issue of entitlement to an effective date earlier than May 15, 2011, for the award of a TDIU, the AMC granted the Veteran a TDIU in its August 2011 rating decision and assigned the same an effective date of May 15, 2011. The Veteran then submitted a September 2011 letter, within one year of notification of the August 2011 rating decision, expressing dissatisfaction with the effective date assigned. An SOC has not been issued concerning this earlier effective date issue, as the claims file was in the custody of the Board at the time of the Veteran's NOD. Based on the Court's decision in Manlincon, 12 Vet. App. at 240-41, a remand is required for the AMC/RO to send the Veteran a SOC.
Accordingly, the case is REMANDED for the following action:
1. Submit the claim for a higher disability rating for lumbosacral strain to the Under Secretary for Benefits or Director of Compensation and Pension Service for an extra-schedular evaluation under 38 C.F.R. § 3.321(b) (2011).
2. Then readjudicate the claim for a higher disability rating for a lumbosacral strain on both a schedular and an extra-schedular basis, in light of the additional evidence obtained. If the claim is not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case (SSOC) and give them an opportunity to respond to it before returning the file to the Board for further appellate consideration.
3. Provide the Veteran and his representative a SOC on the issue of entitlement to an effective date earlier than May 15, 2011, for the award of a TDIU. Give him time to perfect an appeal of this claim by filing a timely Substantive Appeal (VA Form 9 or equivalent). Only if he does appeal should this claim be returned to the Board for further appellate consideration.
The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).
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A. BRYANT
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2011).